SCOTUS Watch: Two weeks, 19 opinions


Posted by AzBlueMeanie:

And the suspense builds . . .

According to the stats kept by, the U.S. Supreme Court has heard 75 merit cases this
term, and issued opinions in 56 of those cases.

This leaves 19 opinions to be announced over the next two weeks
before the end of June. Mondays are orders and opinions days, and the court has added Thursday opinion days. Unless the court adds an additional opinion day, this leaves four opinion days.

There are several cases I am following for decisions that could be issued on any of these four opinion days. One never knows, the U.S. Supreme Court does not announce opinions in advance, and the court does not leak to the media.

There are two voting rights cases. The first is Arizona v. The Inter Tribal Council of Arizona, Inc.,
(12-71), which involves the question whether the National Voter
Registration Act preempts Arizona's Prop. 200 (2004) that requires
persons who are registering to vote to show proof of citizenship to
register to vote. The federal law requires only an attestation of
citizenship, subject to prosecution for false attestation. This is a
federal preemption issue.

The "big one" that everyone is waiting for is Shelby County v. Holder, (12-96), which involves the question whether Congress’ decision in 2006 to reauthorize Section 5 of
the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority.

This is the "preclearance" provision of the Voting Rights Act with
which covered states, such as Arizona, must comply because of past
history of voter discrimination. Arizona has yet to qualify for the
"bail out" provision of the Voting Rights Act because Arizona has not
had a record of non-discrimination for more than 10 years.

If Section 5 is struck down, it will be a conservative activist
court substituting its judgment for the judgment of Congress, which
reauthorized the Voting Rights Act with overwhelming bipartisan support.
That would set off a firestorm of protest, and justifiably so.

There is the affirmative action case of Fischer v. University of Texas at Austin, (11-345), which involves the question whether the Court’s decisions interpreting the Equal Protection
Clause of the Fourteenth Amendment, including Grutter
v. Bollinger
permit the University of Texas at Austin’s
use of race in undergraduate admissions decisions.

There are the two marriage equality cases that could be either a landmark civil rights decision on the magnitude of Brown v. Board of Education
overturning the "separate but equal doctrine" of state-sanctioned
racial segregration, or the court could opt for a more limited
application of its decisions.

There is a growing sense that the Court is likely to strike down the federal Defense of Marriage Act (DOMA) in United States V. Windsor,
(12-307), which involves the question whether Section 3 of DOMA
violates the Fifth Amendment's guarantee of equal protection of the laws
as applied to persons of the same sex who are legally married under the
laws of their State. The case arises out of the application of the
inheritance tax to a legally married surviving spouse.

There is a separate jurisdictional issue on the question whether the DOJ's agreement with the
court below that DOMA is unconstitutional deprives the Court of
jurisdiction to decide this case; and whether the Bipartisan
Legal Advisory Group of the United States House of
Representatives has Article III standing to be a party in this case.

The other marriage equality case is Hollingsworth v. Perry,
(12-144) which involves the question whether the Equal Protection Clause
of the Fourteenth Amendment prohibits the State of California from
defining marriage as the union of a man
and a woman. Because of procedural questions involving proper parties
jurisdiction, the court has a way to punt this case without rendering
a decision on the merits.

If the court does rule on the merits, the emerging sense is that the
court's holding will be limited to the state of California, rather than a
landmark decision on the magnitude of Brown v. Board of Education.

However, last month the states of Rhode Island, Delaware and
Minnesota enacted marriage equality statutes, bringing the number
to 13 states. 13 countries, including Canada, recognize marriage equality, and Uruguay, New Zealand and France enacted marriage equality laws that take effect this year. The British Parliament is currently working on a bill that may be approved this summer.

Supreme Court Justices are keenly aware of political trends and the
momentum behind marriage equality, and they want to be on the right side
of history. They do not want to be remembered as the court which
adopted the "separate but equal" doctrine justifying state-sanctioned
racial segregation in Plessy v. Ferguson. There is still a chance that this could be a landmark decision.